Ontario Women’s Justice Network

Rights and Protections for Temporary Foreign Workers in Ontario

The Employment Protection for Foreign Nationals Act, 2009 is a law meant to protect temporary foreign workers from certain abuses by employers or recruiters in Ontario. This article will offer more information about what this law says and what you can do if you are experiencing abuse.

The law applies to all foreign nationals who are employed or looking for work in Ontario under an immigration or foreign temporary employee program. This includes domestic caregivers.

Many temporary foreign workers are vulnerable to abuse because of language barriers, isolation, their lack of permanent immigration status and dependence upon employers and partners for immigration status, financial and employment support.

If you are a domestic caregiver or other temporary foreign worker being abused in your workplace, you may be eligible for emergency processing of a new work permit to help you transition to a new employer as quickly as possible. Contact the CIC Call Centre 1-888-242‑2100 to confirm requirements for emergency processing of work permits. This article will try to explain your rights and options in more detail below. If you are a Domestic Caregiver, find more information about changing jobs in the article, Help for Domestic Caregivers in Abusive Situations: How to change jobs.

Abuse is when somebody hurts you or makes you feel unsafe. Abuse can mean that someone has physically hurt you, but it can also mean that someone is doing things that make you feel afraid or humiliated. Abuse can be physical, sexual, verbal, emotional/psychological, social, spiritual, or financial. Some common types of abuse you might experience as a temporary foreign worker may include:

yelling, insults, threats to deport you, or false accusations by your employer which are meant to scare or intimidate you;

keeping your money or passport, withholding your pay, stopping you from getting a different job;

not allowing you to leave the house, use the phone or talk to your friends or family;

Many caregivers and other temporary workers stay in abusive workplaces because they do not feel that they have any other choice. If you feel you are in an abusive situation, there are people you can talk to about what to do and how to stay safe.

Assaulted Women’s Helpline1-866-863-0511/TTY 1-866-863-7868 has information on services and resources in your community. The Helpline is completely private, and you do not have to tell them your name. It operates 24 hours a day, 7 days a week. You might ask the operator for help finding shelters, information on women’s support groups, or how to access legal aid.

You do have some rights as a temporary foreign worker in Canada. Many labour laws that protect other Canadians also protect you. In Ontario, this includes the Employment Standards Act, 2000. You are also protected under Human Rights Codeand the Canadian Criminal Code. If you were physically or sexually assaulted, you can report the abuser to the police, even if you were not physically hurt. Certain stalking behaviours are also a crime.

Employment Protection for Foreign Nationals Act, 2009 (EPFNA)

This Act applies to all foreign nationals who are working or looking for work in Ontario under an immigration or foreign temporary employee program. This Act also applies to all employers and recruiters of foreign nationals who are working or looking for work in Ontario under an immigration or foreign temporary employee program, and people acting on behalf of these employers and recruiters.

A recruiter cannot charge you any fee

A recruiter is anyone who finds or tries to find you employment, helps another person in finding you employment, or refers you to someone to help you find employment in Ontario. The recruiter cannot charge you any fees.

You cannot be charged for:

Your Labour Market Impact Assessment (LMIA)

Your work permit

Orientation

Resume writing

Interview preparation

First Aid Training Session

Even if these services are optional, a recruiter cannot charge you fees. No person working on behalf of a recruiter can collect a fee from you.

Your employer cannot charge you for hiring costs

If your employer paid fees or any other costs to hire you, he or she cannot charge you for these costs or try to take them out of your wages. This includes any costs listed above that apply to recruiters, such as for your LMIA or work permit. One exception to this rule applies as of November 26, 2015 – employers who employ foreign nationals under the Federal “Seasonal Agricultural Worker Program” (SAWP) can recover the costs of air travel and of work permits if the deductions are allowed under the SAWP employment contract.

Your recruiter or employer cannot take or keep your property

Your recruiter, your employer, or a person acting on behalf of either, is prohibited from taking or retaining your property for any reason. This includes documents such as your passport, work permit or birth certificate.

You cannot agree to give up your rights

You cannot agree or sign a contract to give up any of your rights under the EPFNA with your recruiter, your employer, or someone acting for your recruiter or employer. Any such agreement is invalid.

Your employer cannot punish or threaten you for asking questions about your rights or asking for your rights

You are allowed to:

Ask your employer or recruiter to obey the law

Ask about your rights under the EPFNA

File a complaint

Attempt or attempt to exercise one of your rights under the EPFNA

Give information to an employment standards officer

Testify or participate in a proceeding under the EPFNA

If you ask about your rights, your employer is NOT allowed to:

Intimidate you

Fire you

Suspend you

Reduce or withhold your pay

Punish you in any way

Threaten any of the above actions

Even though these things are not allowed, some people do not follow the law. If your recruiter or employer intimidates or punishes you for asking about or using your rights, this is called a reprisal. Reprisals are NOT allowed under the EPFNA and the employer can be ordered to pay you back for any loss. You might want to consider making a complaint or try to switch jobs. The next sections give more information about these options.

If you have any questions or believe your rights have been violated and want to make a complaint to the Ontario Ministry of Labour, contact the Employment Standards Information Centre at 416-326-7160 (or toll-free at 1-800-531-5551 or TTY 1-866-567-8893). For more information or to download a claim form, visit the Ministry of Labour website.

You have three and a half years to file a claim for your rights under the EPFNA.

Please note that different time limits apply to complaints under the EPFNA and the Employment Standards Act (ESA). Also, separate forms are used to file claims under the EPFNA and ESA. If you bring a claim under EPFNA or ESA, you will NOT be able to bring a civil claim on the same matter. This means that if you make a claim with the Ministry of Labour, you cannot also start a lawsuit against your employer or recruiter in court.

It is your decision whether or not you want to make a complaint under the EPFNA. Many times, the processes take time and you may be scared that your immigration status in Canada will be at risk. Your employer or recruiter cannot deport you for making a complaint or asking for your rights, but if you do not have status here, they could report you to immigration officials. If you are in this situation, you should try to speak to a lawyer right away. Places like the Assaulted Women’s Helpline1-866-863-0511 can help you find a lawyer.

If you choose to make a claim, contact the Employment Standards Information Centre at the numbers above or download a claim form from the Ministry of Labour website. If you are in Canada without valid immigration status, see the section in this article below.

After you file a claim

Once your complaint has been filed, it will be reviewed to make sure that all the right information has been provided. If the claim includes all required information, you will receive a letter in the mail with your claim number, and your claim will be assigned to an Employment Standards Officer for investigation.

Investigation

An Employment Standards Officer (ESO) will contact you once he or she starts the investigation. You may be required to provide information and certain documents. The ESO will also contact your employer or recruiter about the claim, who will also have a chance to give documents and information to support his/her position. In some cases, you may have to attend a meeting with the ESO alone or with the ESO and employer or recruiter.

It is against the law to try to stop, interfere or refuse to answer the ESO’s questions during an investigation. It is also against the law to give false or misleading information to an ESO during an investigation. It is very important that caregivers, employers and recruiters cooperate and tell the truth or they may face penalties.

Once the officer has contacted all the parties, including your employer or recruiter, and has reviewed all relevant information, the officer will make a decision regarding the claim.

Settlement

If you and your employer or recruiter can agree on how to deal with the problems, you may be able to finish your claim by making a settlement agreement without the Ministry’s help. It is a good idea to have a lawyer help you to make a settlement agreement and/or to look over any agreement before you sign it. A settlement can be made at any time after you file your claim. You do not have to wait for the ESO to contact you or the other party in order to settle your claim.

In some cases, the ESO may find that the employer or recruiter did nothing wrong and no orders will be made. However, if the ESO does find that the employer or recruiter broke the law, the officer has the power to order the employer or recruiter to:

stop the illegal behaviour and do what the officer says to make sure they follow the law;

repay any fees or costs if the recruiter or employer charged you illegally;

repay any wages or compensate you for any losses if the employer behaved illegally;

rehire you if you were fired illegally; and/or

issue a Notice of Contravention with a specific penalty that the employer must pay.

If your employer or recruiter does not agree with the ESO’s decision, orders or notices, he or she has 30 days to apply to the Ontario Labour Relations Board (OLRB) for a review (appeal) of the decision. If your employer or recruiter does not apply within this time, the ESO decision is final and the employer has to follow it.

If you do not agree with the ESO’s decision or orders, you also have 30 days to appeal to the OLRB or the decision is final and binding.

If your employer or recruiter continues to ignore the decision or orders of the ESO, the Ministry of Labour may prosecute (take him/her to court). If the employer or recruiter is found guilty for breaking the law or for not following an order, the penalties can be large fines or possible imprisonment.

Also note: If it is found out that your employer is not following the rules of the Federal Temporary Foreign Worker Program, depending on the situation, they can also be: warned; fined; banned from applying for new workers; listed on a government website for bad employers; and/or lose their Labour Market Impact Assessment. In 2015, the federal government made punishments harsher for employers who do not follow the rules of the federal program.

If you are experiencing abuse, but you do not want to make a claim with the Ministry of Labour under the Employment Protection for Foreign Nationals Act, 2009 there may be other steps you can take.

Preparing to leave or trying to change an abusive situation can be overwhelming. You may want to discuss your situation with someone that you trust, such as a friend, support worker, lawyer, or doctor. Remember that talking to someone about your problems does NOT mean you have to involve the police or leave your employer if you do not want to. Your safety is the most important thing and it is important to have a safety plan even if you decide not to report your abuser. For more information on making a safety plan, see Domestic Abuse- Increasing Your Safety.

You can also try to contact a local women’s organization or shelters or call Assaulted Women’s Helpline1-866-863-0511. Be careful what children overhear, because they may not understand the situation, or tell your abuser about your plans. It is important to only speak with people who you trust to protect your privacy.

Remember that your abuser may be keeping track of your phone and internet use. If you are living with an abusive employer, be careful about phone calls and using the internet in the house. See the article “cover your tracks” that explains safe Internet and phone practices. If you think you are being monitored, try to ask a friend to call or help get the information for you.

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Information on OWJN is not legal advice

OWJN contains general legal information only. OWJN does not give legal advice. If you need legal advice, you should contact a lawyer, who can help you make decisions about your legal rights. You may be eligible for legal advice from a community Legal Aid clinic.